The Companies Act 1956, defines ‘company’ as a Company formed and registered under the Companies act. A company is a legal or juristic person, apart from its members, capable of rights and duties of its own, and endowed with the potential or perpetual succession and a common seal. It is not a novelty, but an institution of very ancient date, it can sue or be sued. It can own and dispose of properties.
An application in the prescribed form is to be filed with the “Registrar of Companies” along with
If the Registrar is satisfied that all the requirements are complied with he registers and places the name of the company on the Register of companies and issues a certificate of incorporation as a Limited Company.
The Company is born on the issue of the certificate. The validity of it cannot be challenged in any court (The remedy is to claim for winding up).
Private Company: It may start business, soon after incorporation. But a Public company must take out a certificate of commencement of business from the Registrar by filing an application, signed by the Director or the secretary and fulfilling certain statutory conditions.
The outstanding feature of a company is its status as an inde-pendent corporate person. By incorporation, the company becomes vested with the legal personality. The leading case is Solomon Vs. Solomon & Co. Ltd.
Solomon was a boot and shoe manufacturer. His business was sound, he incorporated a Company called Solomon & Co. Ltd., for running the business. The seven subscribers to the Memorandum were Solomon, his wife and a daughter and four sons. Solomon and two sons formed the Board of Directors. The business of manufacturing was transferred by Solomon to the company at a cost £ 40,000.
In the company, Solomon had 20,000 shares of one pound each (The company had a debenture of £ 10,000/- to be given to Solomon).
Within a year the company went into liquidation. The creditors who had advanced to the Company, sued and claimed that Solomon & Co. was not a ‘Company’.
Held, Solomon & Co. was a Company as it fulfilled all the legal requirements of an incorporated Company; it was a juristic person different from its subscribers. Its liability is therefore limited.
This is a privilege and an advantage, in-as-much as the liability is limited to the extent of the shares held by the shareholders and no liability arises beyond this. The members are not the owners of the company and are not liable to its debts. The company is independent and meets its obligations.
There is perpetual succession and the company never dies. The membership may be changing from time to time, but this will not affect the company or its continuity. The death or insolvency of a member will not affect it. Members may come and go but the com-pany goes on forever.
The company as a legal person, may acquire, hold and dispose of property. It is the owner of all its assets and capital. Hence, the shareholders are not the owners.
The shares (and other interests) of any member are a movable property and are transferable, as per the Companies Act. Once the Company is incorporated, a shareholder may sell his shares in the open market and get back his investment.
As a body corporate, in its own name, a company may sue or be sued. This is one of the essentials of the legal personality of the company.
|Company is a legal person, it is separate from its Members (Solomon Vs. Solomon)||Not a person, partners are agents|
|Members (shareholders) are not liable for the debt of the Company (Limited Companies)||Partners are jointly and severally liable & hence unlimited liability|
|Members are not its agents||Every partner is an agent of the firm|
|A member may transfer his shares freely.||A partner cannot transfer and make the transferee (without the consent of other partners) a partner|
|A company is bound by its M/A & A/A which cannot be changed except according to to procedures provided therein||Partners may make partnership agreement which may be changed changed by them if not registered. If registered, changes should be brought on Registrar of Firms Record in the Registrar's Office|
|There is no limit as regards membership. But for private company the minimum is 2, maximum 50. For public companies minimum is 7, no limit on maximum.||The number of partners should not be above 10 for banking and 20 for others|
Large partnerships trading without registration create confusion and uncertainty and many evils flow from them. Hence, to arrest this activity sec. 11 (2) of the Companies Act provides that if a company, Association or Partnership is formed with 20 or more persons (10 in case of Banking business) to do any business, and acquire gains or profits then it should be registered as a Company under the Companies Act. If not so registered it becomes an “illegal Association”.
Leading case Badari Prasad V. Nagarmal
The Supreme Court refused to grant any relief as the Association was illegal.
In Dayal Singh V. Des Raj (Punjab)
20 persons engaged in manufacture of “Trunks” formed an “Association’, applied to the controller for Steel Quota, got the quota and distributed among themselves. It was not a registered association, The Court held that it was an illegal association and no suit would lie for dissolution and accounts.